3 October 2016Jurisdiction reportsRaluca Vasilescu

Post-Brexit pros and cons

These eight countries—Bulgaria, Croatia, Czech Republic, Hungary, Poland, Romania, Slovakia and Slovenia—share some common characteristics, such as:

They are among the last countries that entered EU (starting in 2004);

They all speak non-official European Patent Office (EPO) languages (ie, not English, French or German); and

Their economies are less developed than those of some of the older EU states.

One of the notable consequences of Brexit is the likely postponement of the unitary patent package, specifically the Unified Patent Court (UPC) Agreement. At the time of Brexit (June 2016), neither Germany nor the UK had ratified this agreement.

The author believes that the postponement of the unitary patent would be a relief for businesses in Eastern European countries, with the greater relief being for small and medium-sized enterprises (SMEs).

The unitary patent will benefit large enterprises with large patent portfolios and intellectual property budgets to match. If the native language of such a large enterprise is one of the EPO’s official languages, the benefit is even higher, because there is no additional effort in drafting a patent specification in a foreign language.

The reasons are simple and already known: one patent, one language, no translations, and no fees to be paid to each patent office. Should litigation arise, it would most probably take place in a court situated in one of the EPO’s official-language countries, once more requiring no effort related to language.

On the other side of the road stand SMEs from countries such as those in Eastern Europe that do not have an EPO official language and are located far away from the UPC branches that are expected to hear the majority of the proceedings. They have to make significantly more effort to understand patents in other languages, machine translations are far from being reliable, and in case of litigation, they have to spend considerable effort and money going to a court whose proceedings are in a foreign language.

A history of invention

The eight countries named above account for around 16.5 percent of the total population of the countries that are members of the European Patent Convention, and yet the total number of patent applications by country of origin between 2006 and 2015 is only around 1.05 percent of the total number of applications (source: EPO website). The reasons are primarily of an economic nature.

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